June 08, 2007

Shorter Reggie: I Will Remember Your Interest in Public Service the Next Time Someone Really Needs It

by emptywheel

As I was reading the Amicus Brief from Robert Bork and friends today, I was thinking to myself, "Jeebus! They sure pulled this together quickly, with 12 fancy lawyers agreeing on a brief within 72 hours. You think maybe they had this in the works ahead of time?"

Well, apparently, Judge Walton is thinking the same kind of thing. Check out the footnote in his order allowing Bork and friends to submit their brief.

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Ouch! You think maybe he didn't appreciate the heavy-handed intervention into his case? You think maybe he didn't appreciate having 12 fancy lawyers suggest he can't make his own decision in this matter?

I'm reminded of Judge Walton's face when Ted Wells insisted on reading the letters from Wolfie et al before the sentencing. He was staring up at the ceiling with his lips pursed, a look of disgust that Team Libby insisted on carrying out their big show regardless of any effect it might have on Walton. Walton was just a prop, it seemed, in Ted Wells' circus.

And from the look of things, Walton isn't any happier about this latest stunt. I'm not so sure that the Bork brief is as easy to ignore as Wolfowitz' letter. But Team Libby sure seems prepared to piss off Walton to get what they want out of him.

Comments

William Ockham - You have eloquently stated a thought or hypothesis that several others, both here and elsewhere, have touched on, i.e. the defense making a concerted and consistent effort to goad Judge Walton into some type of emotional outburst that provides appealable error. Quite frankly, while this is not a common defense tactic, it is certainly not unheard of. There have been a few occasions in superior court and municipal court trials in which I had no real defense, and whatever I did have was going nowhere fast with the jury, that I did just that. Try to inflame the situation to where either the judge, or prosecutor, causes a mistrial or injects reversible error. This is a tactic of desperation. It is also not a tactic I would ever try in Federal Court. By and large, Federal judges are smart enough and experienced enough, and also have teams of very bright law clerks, to not only fend off this tactic, but stick it far up your posterior. This is clearly the case with Judge Walton. I am much more inclined to think these histrionics are for the "base" and for the theoretically more friendly faces at the DC Circuit Court of Appeals. Don't oversell the thoughts that the appellate branch will necessarily be that much more sympathetic however. The appellate panel is housed in the same building, the Prettyman Courthouse. The judges of the appellate division and the district court trial division share many common facillities usually, and my guess is that holds in DC as well. Both sets of judges park in the same area, eat at common judges cafeteria facillities (sometimes seperate eating rooms, often not, but common food areas), common recreation areas, common research and library areas. They have group federal judiciary meetings and discussions for the local district.. In short, they know each other well. They usually respect and like each other. Overplayed to much, and the supposedly Libby friendly appellate court may just get the back of their friend judge Walton and stick it to Libby again.

But then again, all of you are bunch of snivieling little hypocrites... You're all a bunch of small minded nits...just like Reggie Walton, who can do nothing but sneer.
Posted by: Karl K | June 09, 2007 at 12:27

I was going to ask you to stop saying mean-spirited things about me but then you brought up Judge Walton and I just had to laugh.

Listen, you're being gamed. Open your mind to the truth. It's there for you. In truth, there is freedom. Ask yourself why so many traditional conservatives (as opposed to neo) are disgusted with the behavior of the Bush adminsitration in this case. And when you're done, go f*ck yourself.

I was impressed with Walton's calm demeanor when Team Libby pulled the bait and switch with Scooter's testimony. If they tried to pull a stunt like that in Indiana, the lawyers would be in jail for contempt.
Chief Justice Roberts, is from Indiana, incidently.

"So, the Amici boys are pushing the notion that Fitzgerald's status as prosecutor was unconstitutional. I don't remember hearing a peep from any of them when Ken Starr was on the loose and violating every principle of the prosecutor's code."

Among the "band of legal brothers" stepping up for Scooter Libby: Doug Kmiec, an apologist for hire on the news channels for Ken Starr.

Kmiec and Starr are brothers in armpits together at that fine, Regent Law level, institution Pepperdine Law School after he bailed on the Clinton persecution beat. In fact, I would hazard a guess that Kmiec was at least partially responsible for Starr landing at Pepperdine. Kmiec is a one trick pony; he will say anything, contort any legal principle, and create any fabrication to support anything involving right wing nuttery. He probably has less intellectual integrity than any other so called "constitutional scholar" in the country.

Ouch! You think maybe he didn't appreciate the heavy-handed intervention into his case? You think maybe he didn't appreciate having 12 fancy lawyers suggest he can't make his own decision in this matter?

Interesting. Since I am endorsing speculation that Judge Walton is hustling Libby off to jail in order to force a quick pardon and keep the case away from the appeals court (where he might be embarrassed by some high profile reversals), your suggestion that he is thin-skinned and sensitive is quite helpful.

I guess "Judge not lest ye be judged" is not hanging on a plaque in Walton's office.

And if he really thinks that in this high profile case involving a once-in-history special counsel that the law professors who devote their lives to this area of study ought to shut up, well, he is not reality based.

"I guess 'Judge not lest ye be judged' is not hanging on a plaque in Walton's office.

And if he really thinks that in this high profile case involving a once-in-history special counsel that the law professors who devote their lives to this area of study ought to shut up, well, he is not reality based."

TM, a voice from beyond... making claims to 'reality.' I'd now like the court to hear from some non-wingnut law professors who haven't been organized to write for Libby.

Mr. Maguire, I am curious, exactly how many times do you have to have your ass handed to you on a plate before you muster a bit of humility and regroup what increasingly appear to be your limited faculties? You have chutzpah, even if little else.

I don't think this particular group of law professors devote themselves to things academic, intellectual, or ethical--just right-wing dogmatic readings of the law. Would I want to rely on any of them for legal representation? No way. Oh, that's right. They are teachers and those who, whatever, teach. Have I got this right?

One last thought. There has been much postulating that the amici could not have come up with this brief in 72 hours. This may well be the case, i.e. that it has been waiting in the wings or in process much longer than three days. The more I think about it though, that is not necessarily the case. The structure and phrasing of the argument in the brief, the somewhat unusual reference to Lawrence Tribe, the footnote use etc. all make it look like the work may have been primarily a law review piece or journal article by one or more of the amici that was rapidly converted for this purpose. It is a single issue brief and is not particularly lengthy. It actually could have been put together quite easily in 72 hours. For further evidence, not that none of the luminaries actually signs the document; it is signed and submitted by a guy with an office right by the courthouse.

Dershowitz did a great deal of work on behalf of torture. He was everywhere in the media during the nefarious torture debates post 9/11. He even came to Canada to advocate 'torture warrants.' He seemed willing to be interviewed by anyone. I don't imagine he was paid much beyond travel expenses for all those interviews.

"...Since I am endorsing speculation that Judge Walton is hustling Libby off to jail in order to force a quick pardon and keep the case away from the appeals court (where he might be embarrassed by some high profile reversals)"
Posted by: Tom Maguire | June 09, 2007 at 18:43

Tom, speculation may be your best form of argument. I'm not saying you're necessairly good at it, as in your predictions bear out, I'm just saying you're practiced and you've developed a fine reputation for it.

"I think TomJ nails the secondary motivation here. The primary motivation is to play to the media & make it easier for Dubya to give a pardon, but if they can taunt Walton into losing his cool (and thus creating a grounds for appeal) that's a handy bonus."

Libby has an appeal as of right. They are trying to provoke Walton in effort to establish a pretext for the appellate court to _overrule_ Walton. The appellate court has probably seen the tactic before now.

Ultimately an Amicus is only a suggestion. It needn't be given any weight.

Vikram Amar is the brother of Akhil Amar, a well-know professor at Yale. I've always thought of Akhil as being a pretty liberal guy, but I don't know if (as a commenter above noted) his views would be in sync with ours. And of course, I have no idea if Vikram is anything like his brother.

"Judge Walton probably needs to be a little more circumspect if youse guys don't want his rulings reviewed even more carefully by the Court of Appeals."

I doubt it is the first time this sort of insult has been uttered to a court. Obvious effort to provoke is seen for what it is.

"I would bet that most if not all of these people have done a great deal of pro bono work;"

You'd lose the bet. If anyone in the law firms does pro bono it's the new hires. The lawyers from firms in this case serve two masters: law, and billing.

And law professors such as Dershowitz do it for publicity and their next book.

"and we don't really know how effective Judge Walton was as a public defender before he went to work for the man.He comes across as a man who doean't like the scrutiny; a thin skin won't work on the district court."

He comes across as a judge who is self-assured. Remember: he didn't prosecute the case, and he didn't find the guilt, the jury did. And his sentence as at the low end of the guidelines; Walton could have given him more time and it would still be within the guidelines.

If one of yours was about to head for the slammer for lying about a non-crime -- say, for example, Bill Clinton -- you would be going absolutely nuts."

Thank you for admitting that Clinton didn't commit any crime. Let's look at the full fact, since you wingnuts are the masters of remembering how to forget:

Clinton has a non-illegal consensual heterosexual affair with a female stalker.

The House, under the control of Republicans, abuse the powers of Congress by impeaching Clinton for allegedly lying to cover up that non-illegality. The Republicans noted the fact that, lying to a grand jury is in and of itself perjury -- a felony. It is a crime independent of whatever the matter about which one is lying.

Then the Republican-controlled Senate, also abusing the powers of Congress, tried _AND ACQUITTED Clinton.

But let's not forget how they brayed and brayed that not prosecuting perjury would destroy the Constitution and rule of law. It would be an invitation to others to lie.

There is little different in the case of US v. "Scooter". He was charged with perjury for lying to the grand jury. He was found guilty, based upon overwhelming evidence, by a jury of Libby's peers. (Peers as to equality before the law as citizens. They apparently weren't of the same class as the entitled aqbove-the-law Scooter".)

Your heads would be exploding.

Actually, it is the wingnuts' heads -- including yours -- which are exploding from the hypocrisy. That Clinton was a public servant who contributed more even than Libby wasn't an argument against being charged with perjury. Niether was the fact that there was no underlying crime.

When the shoe is on the other foot -- a political party-before-Constitution, rule of law, and country Republcan't [handle the truth] -- perjury desn't matter. What matters are the personal attacks against the victims, We the people, and Plame, and the Special Prosecutor Patrick Fitzgerald, and Judge Walton. All of them are wrong because all of them are about enforcing the rule of law, including that which has for centuries prohibited perjury, and held it to be a felony.

When will you lying thugs cease attacking the system of justice, element, by element, by element, when you get your balls caught in its vice because you plainly and obviously asked for it?

"Scooter" is a proven liar -- even by the Bush White House employees who testified for the prosecution against him. That he lied under oath make his lies the prohibited crime of perjury. And the sentence handed down to "Scotter" or both within the sentencing guidelines required by Bushit, and much less than it could have been while remaining within those guidelines.

Do us a favor, 28 per center: crawl back into the sewer that vomited you out because it had too much self-respect to further allow you to pollute it.

Mr. Maguire, I am curious, exactly how many times do you have to have your ass handed to you on a plate before you muster a bit of humility and regroup what increasingly appear to be your limited faculties?

I'll be sure to let you know as soon as someone hands it to me.

Bonus Point to Ponder: Walton could, with as much "logic" as he employed here, have argued that bloggers could be barred from the Libby trial since he does not see them every day covering other cases.

Hands up among folks who think that would have been greeted with 'huzzas' amongst the left.

The One Minute Man's actual blog-post is surprisingly limp, no?

I deplore the innuendo, which is I'm sure is homophobic or ageist, or anyway something deplorable - my arguments are firm and, hmm, lengthy. For the minute they are available.

As to my post, give me time - I actually thought links to the amicus brief and the intial filings by both sides would be helpful and interesting, but I may come back and mock the catcalling left today - I am just fascinated by the unanimity of the stupidity,

Did it really occur to no one that for Walton to suggest that Con law experts should not opine on high profile Con law questions unless they also comment on every buy and bust that goes through the Federal courts is absurd? Guess not.

Did it occur to no one to realize that Walton has *ZERO* idea how much pro bono work these guys do in their home districts, ratehr than DC? I am certain that Ms. Wheeler, Ms. Hardin Smith, Dr. Marshall, et al are similarly ignorant (as am I, but I don't care.)

There's a joke in the entertainment industry:
How does a Production Manager say 'Shut Up!'?
"Thank you for bringing that to my attention, I'll look at it right away."

I like Judge Walton's version even better!

*****************

As to Tom Maguire, I have only heard of him recently, and whatever I read of his is so full of DoubleThink, I can scarcely make out his reasoning. And after I do figure out what he's trying to say, his point is sooooo immaterial to the matter at hand that it becomes clear his whole mission is to waste as much of your time as possible with immense clouds of kerfuffle.

I love it when the Righties compare this with Clinton's impeachment. There are many many differences. But the only one you need to remember is that while Clinton was acquitted by the REPUBLICAN controlled Senate, Scooter was found guilty. End of story.

I'd now like the court to hear from some non-wingnut law professors who haven't been organized to write for Libby.

You mean firedoglake and the Huffers haven't got that covered?

Seriously, did Walton notice the news crews swarming the courthouse for the Libby trial, or does he get crowds like that for every case?

And did he send a special thank-you to the firedogs for their excellent live-blogging, or did he consider that attention to be intrusive as well?

His notion that experts in constitutional law should not comment on this case unless they comment on every run of the mill case that comes down the pike is ridiculous. And that said, I have no idea whether these law profs do none, some, or a lot of pro bono work, and neither does Walton (or you). His rant is silly and offensive. But it bashes Libby, so celebrate it!

FWIW, IMHO a judge ought to welcome suggestions on what really is a very unusual constitutional question. Whatever.

I'm curious who actually wrote the amicus brief. I think it's safe to assume that the esteemed dozen didn't hammer it out in a room together as a team.

More likely, whoever commissioned it shopped around the finished product to every big name they could think of. Then, once the retainers cleared, they had their signatures. (Dershowitz is the dead give-away. He'd never lend his name to a right-wing cause for free.)

Judge Walton surely knows this as well. That's why he included the wonderfully smart-ass footnote.

Tom McGuire--I beg to differ that the Bork 12 are "experts in constitutional law." God forbid they should represent anybody in a 1983 action. They are not experts in constitutional law. They are exponents of a very narrow view of the constitution. The constitution in which they are expert, I believe, differs radically from the constitution the founders drafted.

I have no problem mentioning Richard Armitage who, by the way, is far from one of my boys. The difference, you see, between Armitage and Scooter is that Armitage admitted what he did. Scooter lied and lied, a crime in itself, which keeps us from knowing the full extent of his involvement and the involvement of his peers.

Late to the party here, but have a couple of observations:
1. A touch of snark from Reggie -- directed toward these officious amici and not against Libby -- is unlikely to trouble a D.C. Circuit judge who is not a hack and already predisposed to favor Libby.
2. It is quite unseemly for this distinguished group to be stepping in only at the bail stage. If these folks had a truly principled take on the issue, they would have filed at the motion-to-dismiss stage and/or the motion-for-judgment-as-a-matter-of-law stage (the motion that you must file, after the prosecution's case, and renew at the close of evidence, in order to preserve your arguments on appeal). If one truly believed, on principal, that the appointment of this prosecutor was unconstitutional why on earth would one wait until after a trial, jury verdict, and sentencing? Why would one allow that lawless prosecutor to exercise his non-existent power to indict and try a defendant before raising your principled arguments? I'd wager that a considerable part of what is annoying Reggie is the tardiness of the intervention, which suggests that it is more about keeping Scooter out of jail than it is about constitutional principle. But chiming in now has one advantage: they can hide behind the fact that the only question right now is whether the Appoitments Clause issue is "a substantial issue of law" and pretend that they are not really taking an absolute position; indeed, this might be the only way they were able to get a token liberal, Vikram Amar, to sign on.
2. The brief is remarkably thin, not just in absolute terms (6 pages) but in terms of argument. The distinguished professors do not grapple with a critical precedent -- Morrison v. Olson -- so much as simply wish it away. They speciously claim that unless Fitzgerald's appointment was basically identical to appointments made under the Independent Counsel statute, Morrison has no applicability at all -- not even as guidance. Hvaing endeavored to make Morrison disappear by the power of sophistic assertion, they then confidently declare that the only precedent that matters is Edmond v. United States. Never mind that Morrison dealt specifically with prosecutor-types and that Edmond, which dealt with Article II judges on the Coast Guard Court fo Criminal Appeals. Essentially, they argue that Edmond overruled Morrison, albeit without the COurt having bothered to mention that it was doing so.

I find this approach -- simply ignoring the most pertinent case by means of specious legerdemain, without giving a good or thorough explanation of why a very pertinent decision of the U.S. Supreme Court should simply be ignored -- to be very bad lawyering, completely aside from what I think of th merits of the argument.

On the merits, the argument is pretty extreme. The "professors" urge that the ability of theActing Attorney General or the President to remove the prosecutor is not enough supervisory authority; rather, a Superior Officer must have some kind of day-to-day managerial control over the prosecutor. This runs right up against Walton's very pragmatic, but nonetheless persuasive, argument that if the DoJ is corrupted at its top levels, there would be no way to muck out the stables. That pragmatic argumet has real force in the cae of a prosecutor appointed to run an investigation into the exeutive branch where the "Superior Officers" are tainted. If the acting AG and/or the President thinks that the prosecutor has gone off the rails, then they can remove the prosecutor (shades of the Satruday Night Massacre"). the beauty of this is that unlike intra-Executive-Branch micromanaging (read "spiking") of an investigation, this process is quite transparent and has political accountability built in. If it is obvious that the prosecutor is out of control (as Libby 's partisans pretend is the case here), then the President would lose little by firing the prosecutor. If, however, it is evident that the President is firing a prosecutor to save his hide or that of his cronies, then he will pay the political price. (All of which begs the question: if it is sooooo obvious that Fitzgerald was out of control, then why was President McMachoflightsuit too wussy to simply fire him, as that nice Sampson boy suggested might be done.) In sum, the notion that a special prosecutor has to be subject to micromanaging by very the persons whose conflicts of interest necessitated the appointment in the first place seems a very thin argument indeeed.

As I understand it, to be an “inferior” officer such as a US Attorney, Fitzgerald must have been nominated and confirmed, and must work under the effective supervision of his department. In this otherwise routine assignment of a case to a sitting US Attorney, Comey was concerned that the White House or senior DOJ lawyers closely tied to it might exert undue political pressure. So, Comey authorized Fitz to act “independently” of departmental supervision. The SWAT team argues that that step voided Fitz’s status as an “inferior officer” under the Constitution and took away his authority to act as prosecutor in the case. They argue that the issue is at least novel, that no authority provides a clear answer for it, and that it presents the necessary “close question” of law that would justify allowing Libby to remain free pending the outcome of his appeal.

Yes, US Attorneys are considered to be "inferior officers" under the Appointments Clause of the Constitution - but not because they happen to be nominated by the President and confirmed by the Senate, as ALL "principal officers" MUST be, under the Constitution.

The Amici and Libby are basically desperately trying to make 'something out of nothing' (or very little) here. They are plowing old ground that Judge Walton thoroughly covered in his very careful Opinion denying Libby's motion to dismiss last April.

What it really boils down to is that the Amici and Libby want us to believe (and want to pretend the Circuit Court will seriously consider) that Fitzgerald's role as Special Counsel makes him a "principal officer" under the Constitution, at the same time that his role as United States Attorney (like that of every other USA) is as an "inferior officer" under the same Constitutional clause.

The distinction between the two definitions of officers has to do with an officer's role, and Judge Walton has clear binding precedent (from Morrison) for his ruling that the limited duties, lack of immunity to removal by the Deputy Attorney General, inability to formulate policy, and limited jurisdiction and tenure of the Special Counsel define that position as an "inferior officer" not requiring presidential nomination or Senate confirmation.

Here's the Appointments Clause:

Article II, Section 2, clause 2 of the
Constitution provides:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

And this is the source question that Judge Walton's ruling answered that Libby and Lobby are trying to twist out of:

Accordingly, the initial question in any Appointments Clause challenge, and the only question before this Court, is whether the Special Counsel is a principal officer requiring nomination by the President with advice and consent of the Senate or an inferior officer subject to independent appointment by the Attorney General. See, e.g., Morrison v. Olson, 487 U.S. 654, 670-71 (1988).

Because United States Attorneys are "directed and supervised at some level" (Edmond) by a superior (principal) officer (i.e., the Attorney General), USAs are defined as inferior officers under the Constitution (despite their nomination by the President and confirmation by the Senate). Yet Libby and Lobby want us to believe that Special Counsel Fitzgerald has no such 'direction and supervision at some level' by the Attorney General or Deputy Attorney General or otherwise, so as to argue that his Special Counsel role (contrary to his USA role) is that of a principal officer [and as such therefore allegedly requires - per the Appointments Clause - a separate nomination and confirmation (to elevate him to the "principal officer" status that his USA "inferior officer" nomination and confirmation did not confer) before his authority to act is valid].

Now remember the hoops Special Counsel Fitzgerald had to jump through in 2004 to get permission to subpoena reporters in the Plame investigation, by way of the DOJ's GUIDELINES for same... That's not DOJ 'direction and supervision'? And then remember when Rep. Waxman wrote Fitzgerald after the verdict asking to meet with him for some advice about improvements to the law Congress could make, as a result of lessons learned from the Plame investigation - and how Fitzgerald consulted with DOJ before responding, and when told by Main Justice that DOJ POLICY directed he not cooperate with Congress, he so informed Waxman... That's not DOJ 'direction and supervision'?

It may well be an issue that the Circuit Court will want to examine and weigh in on by expanding Walton's analysis, but it is far from a "close question" in my opinion, and very UNlikely to be "decided the other way" on the face of it. So I think Judge Walton has every reason to stand behind his April, 2006 ruling and deny release pending appeal on this issue.

Sebastian Dangerfield and pow wow - To both of you, VERY well stated. I agree completely; but if you read the above comments, you knew that. I am unsure why this brief is getting the play it has, the "big names" are the only explanation. For a brief staking out the argument this one does to not address and meaningfully distinguish Morrison, as you both noted, is absurd. Unless Silberman is chosen to lead the appellate panel and engineers a complete coup on legal principle, this is going nowhere. Sophistry is to kind for this effort.

pow wow,
Thank-you for spelling everything out so clearly :)
I remember when Special Counsel Fitzgerald was going through the process of being given his position/limits etc and just how carefully this process was followed re; letters confirming, reconfirming legal/official standing etc, thinking that DOJ knew to WHERE and to WHOM this 'case' would lead and they were being very careful to dot all their I's and cross their T's,' They knew and were prepared, Great Job!!!! GOOD GUYS :).